Kinetico, Inc. v. Independent Ohio Nail Co. , 19 Ohio App. 3d 26 ( 1984 )

I believe Kinetico's evidence was sufficient to establish lost profits and to permit the jury to consider this element of damages. Anticipated profits must be shown with reasonable certainty. Battista v. Lebanon Trotting Assn. (C.A. 6, 1976),538 F.2d 111, 119. However, it is well-established that the "reasonable certainty" requirement applies only to the cause or fact of damages and not to the amount of damages. See, e.g.,Borne Chemical Company, Inc. v. Dictrow (1981), 85 A.D. 2d 646 , 651, 445 N.Y.S.2d 406, 413-414; see, also, Dunn, Recovery of Damages for Lost Profits 2d (1981), Section 1.4 at 9 and Section 5.1 at 215. Mathematical precision, therefore, is not required. Jay Edwards, Inc. v. New England Toyota Distributor,Inc. (C.A.1, 1983), 708 F.2d 814, 821, certiorari denied (1983),78 L. Ed. 2d 231; see R.C. 1302.89, Official Comment 4.

One of the most common methods of proving lost profits damages is by estimates or projections. Dunn, supra, at 215, Section 5.1; see Hollweg v. Schaefer Brokerage Co. (C.A.6, 1912), 197 F. 689, 702 (evidence of probable sales admissible and not open to criticism of uncertainty and speculation). Another well-accepted method is to compare the experience of plaintiff's own business before and after the alleged wrongful act of the defendant(s). Dunn, supra, at 223-224, Section 5.5. Kinetico utilized both methods in proving its lost profits damages.

Kewley testified that sales quotas were established for 1979. These projections were generated internally based upon past sales performances and without regard to this litigation. In fact, Kinetico's total sales in the first five months of 1979 actually exceeded the projected or estimated sales figures. Moreover, the sales quotas were shown to be conservative estimates based upon the past history of Kinetico's sales, which have increased annually since 1973-1974.

For these reasons I believe the evidence was sufficient to establish lost profits damages. I agree that under the facts presented the jury was improperly instructed that it could make an award for loss of goodwill. Since the jury obviously made such an award, a new trial is appropriate on the issue of damages only.